CIA interrogations have their day in court

In February, we wrote in the Wall Street Journal about a classified brief filed in federal court in which the Obama Justice Department argued for the importance and efficacy of the CIA interrogation program. Now a federal judge has reviewed the evidence and agreed.

On Dec. 18, 2009, the U.S. attorney for the Southern District of New York, Preet Bharara, made the secret filing in response to a motion by Ahmed Ghailani, an al-Qaeda terrorist facing charges for his role in the U.S.-embassy bombings in Kenya and Tanzania in 1998. Ghailani argued that those charges should be dropped because lengthy CIA interrogations denied him his constitutional right to a speedy trial.

In his response, Bharara explained that “the defendant was . . . a rare find, and his then-recent interactions with top-level al-Qaeda terrorists made him a potentially rich source of information that was both urgent and crucial to our nation’s war efforts.” Bharara went on to say that “when the United States took custody of the defendant . . . and it justifiably believed that he had actionable intelligence that could be used to save lives, it reasonably opted to treat him initially as an intelligence asset.” And it turned out that “the defendant . . . did in fact have actionable intelligence about al Qaeda.” The “information supplied by the defendant had important real-world effects,” and he provided “crucial, real-time intelligence about senior al-Qaeda leaders and al-Qaeda plots.” Bharara concluded: “The results of the CIA’s efforts show that the defendant’s value as an intelligence source [was] not just speculative.” Thus, “the interest in national security plainly justified holding the defendant in this case as an enemy combatant [and] interrogating him . . . even if that meant delaying his criminal trial.”

Earlier this month, the federal judge presiding over the case, Lewis A. Kaplan, affirmed these conclusions by the Obama Justice Department. His ruling included a classified supplement describing Ghailani’s interrogation and the results it produced. But in his unclassified ruling, Judge Kaplan wrote: “Suffice it to say here that, on the record before the Court and as further explained in the Supplement, the CIA Program was effective in obtaining useful intelligence from Ghailani throughout his time in CIA custody.”

Kaplan went on: “The government has offered evidence that Ghailani continued to be of intelligence value throughout his time in CIA custody. Ghailani’s counsel have had access to extensive classified materials related to his interrogation, yet they have pointed to no evidence to the contrary. As discussed in the Supplement, the Court concludes that the government’s evidence is persuasive.”

He concluded: “The government has offered credible evidence indicating that the decision to place Ghailani in the CIA Program was made in the reasonable belief that he had valuable information essential to combating al-Qaeda and protecting national security. The same evidence shows that the government had reason to believe that this valuable intelligence could not have been obtained except by putting Ghailani into that program and that it could not successfully have done so and prosecuted him in federal court at the same time.” Therefore, “Two years of the delay [while Ghailani was held by the CIA] served compelling interests of national security.”

The judge also rejected “Ghailani’s claim that he was so affected psychologically by the alleged CIA mistreatment that his ability to assist in his defense has been impaired.” The court appointed a psychiatrist to examine Ghailani, and, “On the basis of the psychiatrist’s report and the entire record, including the evidence from the defense psychologist, the Court found that Ghailani suffers from no mental disease or defect, that he is capable of assisting in his defense, and that he is mentally competent. The Court is not persuaded that his mental state has been affected in any material degree by anything that took place while he was in CIA custody.”

The ruling was a major victory for the prosecution. And it was also a major vindication of the CIA interrogation program. The Obama Justice Department has now argued in federal court that the CIA program was necessary for our national security, that it was effective in producing actionable intelligence about al-Qaeda plots that could not have been obtained in any other way, and that it caused no damage to the terrorist’s mental state. A federal judge has reviewed the intelligence, heard the counterarguments of the terrorist who was interrogated, and agreed with the Obama administration that in the case of Ahmed Ghailani, the CIA interrogation program “served compelling interests of national security.”

– Marc A. Thiessen is a visiting fellow at the American Enterprise Institute, a weekly columnist for the Washington Post, and the author of Courting Disaster, just published by Regnery. David B. Rivkin Jr. is co-chairman of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies, a contributing editor to National Review, and a partner in the Washington, D.C., office of Baker and Hostettler, LLP.